Where a right to a public highway is alleged to be violated, and
a remedy is sought through an injunction, it is not issued, either
at the instance of a public officer or private individual, unless
there is danger of great, continued, and irreparable injury, and
not issued at the instance of an individual, claiming under such
public right, unless he has suffered some private, direct, and
material damage beyond the public at large.
Where the remedy by injunction is sought for an injury to an
individual, and not public right, it is necessary also that the
right to raise the obstruction should not be in controversy, or
have been settled at law. Otherwise, an injunction is not the
appropriate remedy. Until the rights of the parties are settled by
a trial at law, a temporary injunction only is issued to prevent an
irremediable injury.
The principles examined which constitute a dedication of land to
public uses.
This was a bill filed by the Dixions to restrain the appellant
from erecting an enclosure in what they claimed to be a public
highway in the Town of Alexandria, by which the said highway was
obstructed, and the ancient lights of the appellees, looking into
the said highway, were darkened, and for an abatement of the
nuisance. The court granted a perpetual injunction defining the
limits of the highway and requiring the appellant to remove the
nuisance.
The material facts of the case were as follows. John Fitzgerald
and Valentine Peers, on 25 April, 1778, received a conveyance of
lot 51 in the Town of Alexandria, between which and the water of
the Potomac River there was "sunken ground," which, on 17
September, 1778, was conveyed by William Ramsay and John Carlyle,
in their own
Page 50 U. S. 11
right, and as trustees of the said town, to the said Fitzgerald
and Peers. A portion of this land was built upon by them, and that
portion which extends from King Street on the north, running with
Union Street on the west to the center of an alley now called Dock
Street, or Fitzgerald's Alley, and running to the Potomac River,
with the building fronting on Union Street, was, by various deeds,
transferred to and vested in Thomas Irwin, the father of the
appellant. Thomas Irwin was in under his purchase in the year 1802,
and continued so to his death, which happened in the month of
January, 1827. By his will, he directed that all his estate should
be equally divided between his children, when his son William the
appellant should arrive at the age of twenty-one; in the meantime
to be managed for their benefit, by his sons Thomas, James, and
William.
A division of the estate was made on 15 January, 1835, by which
there was assigned to James Irwin a warehouse, on the south side of
King Street, and fronting the river; beginning on King Street, at
the northeast corner of said warehouse, and running thence
southwardly, with the east front of the same, to the center of the
south wall, between which wall and the warehouse south of it by
this deed allotted to Ann J. Carey is an alley or open space; then,
with the center of said south wall, westwardly, to the east side of
the east wall of a warehouse by this deed assigned to William H.
Irwin; then northwardly, with the said east side of the said
last-mentioned warehouse, and the east side of the warehouse hereby
assigned to Mary Irwin, to King Street; thence eastwardly, on King
Street, to the beginning: the said warehouse being part of a lot of
ground conveyed to said Thomas Irwin, deceased, by William and J.
C. Herbert, and by the devisees and trustee of John Dunlap. On 20
April, 1835, James Irwin conveyed all his real estate in the county
of Alexandria to William L. Hodgson, to secure his brother, William
H. Irwin. On 28 February, 1842, James Irwin, to secure the payment
of certain debts therein mentioned, with the consent of William H.
Irwin, conveys to John Hooff
"all his, the said James Irwin's, right, title, and interest in
and to the warehouse situated at the foot of King Street, and then
in the occupancy of John Howard, which property was conveyed to the
said James Irwin by deed of partition between the heirs of the late
Thomas Irwin, deceased, made and executed in the year 1831, and was
afterwards conveyed in trust to the said Thomas Irwin, to secure
his mother, Elizabeth, for what she had become responsible.
Elizabeth Irwin also united in this
Page 50 U. S. 12
deed. James Irwin, having failed to pay the debts intended by
the last-mentioned deed to be secured, the trustee, John Hooff, set
up, pursuant to the deed, and sold the property to the appellees,
who complied with the terms of sale, and Elizabeth Irwin thereupon
united with Hooff in a conveyance of the property, describing it as
fronting on the Potomac River."
James and William H. Irwin did not join in the execution of this
deed.
The Dixions thus claimed to have all the estate, right, title,
and interest of James Irwin in this property, and this was the
foundation of their private right.
It further appeared from the record that at the time Thomas
Irwin purchased the property, there was a large warehouse at the
corner formed by Union and King Streets, and between that and the
river was an open space or lot, extending along the line of King
Street about ninety feet, to a dock at the foot of King Street. In
the year 1804, he built the warehouse now owned by the Dixions,
fronting on King Street and on the Potomac River. At one period of
time, a very large trade was carried on in these premises, and for
years the whole business of the house was transacted through the
door in the east front, looking to the river.
The whole property on which the buildings stand forms nearly a
square, the west side of which is on Union Street, the north on
King Street, the south on a public alley, called Fitzgerald's
Alley, and on the east was an open space running along the front of
the buildings from King Street to, and passing beyond, this alley.
This space is formed artificially, and made solid, and is upwards
of forth feet in breadth before the wharves which project into the
river, or the docks running by the side of the wharves to this open
space, are reached. That part of the open space lying immediately
adjacent to the eastern front of the Dixions' property was paved
with brick to the width of about four feet, beyond which, and
running along the line of this pavement from King Street to
Fitzgerald's Alley, there is a passage for carts and passengers,
which is commonly used, and has never been purposely obstructed
since the erection of this house in 1804.
After the purchase by the Dixions of the said warehouse, the
said William H. Irwin erected a wooden fence eight or ten feet high
enclosing a space nearly twenty-five feet square, the north side of
the enclosure embracing one of the windows on the ground floor in
the east part of the building, and projecting eastward at right
angles to the house, and then southward, and westward, and back to
the wall of the other warehouse erected
Page 50 U. S. 13
by William Irwin, so that it impaired the access to the Dixions'
house, and obstructed their lights, and also completely interrupted
the passing along the footway, and greatly obstructed the use of
the carriageway.
The Dixions filed their bill to restrain Irwin, and prevent his
erecting this enclosure, and put their right on the ground of his
darkening their ancient lights, and also that he was obstructing a
public highway. The injunction was ordered and served. Irwin
persisted in completing the erection, and they amended their bill,
setting up distinctly that Thomas Irwin in his lifetime had
dedicated to the public the use of that part of this open space
covered by said enclosure, and the same had been used by the public
as an open street and common highway, and the use of which had been
consented to by all the persons interested in said property, and by
the different owners of the fee simple of the lots of ground
adjoining and bounding thereon, and by those heretofore claiming
title to the said warehouse and lot now owned by the Dixions, and
that the same had been used by the public as a common highway and
open street for upwards of thirty years, for carriages, horses,
wagons, and drays of every description, to pass, or stand upon to
receive lading, and for doing business of merchandise, or other
business.
The answer of William H. Irwin describes the fence erected as
extending from a post near the Dixions' house, east 26 feet, then
south 26 feet, then west 26 feet, about 10 feet high, but denies
that it is erected on any public street or strand, or on land over
which the public have any right of way.
And denies that it covers any part of complainant's window, and
also denies that it diminishes in any perceptible degree the light
passing through it.
That the fence is exclusively on a lot assigned by the deed of
partition to James Irwin, W. H. Irwin, and A. I. Carey, in common
-- the whole property consisting of five warehouses in a single
block, the main building comprising three, resting on the west on
Union Street, on the north on King Street, and on the south on Dock
Alley, and the two wings extending east from the east side of the
main building, with an open space between them, and of the wharf
lot and pier, which commenced at the eastern walls of the two
wings, and extended unto the river. By the deed of partition the
northern wing was assigned to James Irwin, the southern wing to A.
I. Carey, the middle open space, in connection with the middle
warehouse of the main building, to W. H. Irwin, and the wharf lot
and pier, or open space to the east, to the three in common --
on
Page 50 U. S. 14
which open space is the erection complained of, the Dixions
having purchased the northern wing.
That this open space had been reclaimed from the river by
artificial filling up, requiring constant repair -- was of a
perishable quality -- had always been kept in repair exclusively by
Thomas Irwin and his predecessors and heirs -- who had at all times
openly and notoriously asserted their exclusive ownership over the
lot by excluding people from it, by covering it with merchandise
and by renting it especially to the tenant of the Dixions'
warehouse to be used in connection with it.
That it had been kept open for the convenience of the owners
solely, in connection with the wharf, and that the passage of
people over it had been by leave and sufferance, and not as of
right, but in subordination to the rights of the owner.
He denies positively all the allegations of the bill tending to
show the dedication of that space, or any part of it, and also
denies the existence of any street, strand, highway, or passway of
any kind for the public over any part of the wharf lot.
He admits that the enclosure partially obstructs passage over
said lot, but that there is still ample space for passage between
the fence and wharf for every purpose.
He states that notice was given at the sale that only the
building was sold -- no right existed beyond the wall -- but that
the whole open space was private property.
That the interest of A. I. Carey in Thomas Irwin's estate was
settled to her separate use prior to the partition by deed of 10
August, 1829; W. H. Irwin's interest in the warehouse and wharf lot
and pier was settled to the separate use of his wife on her
marriage in 1839; and that James Irwin had conveyed his warehouse
and interest in the wharf lot to secure W. H. Irwin for certain
debts still due to full value of property.
That he acted as agent of the owners in erecting the fence.
That an agreement referred to in and virtually forming part of
the deed of partition expressly stipulates for the building on the
open space by any two of the owners.
If any right be invaded, he denies that it causes such
irreparable injury to complainants as entitles them to relief in
equity, and avers that the remedy at law is adequate.
He suggests that "fronting the river" is matter of description,
to distinguish the warehouse given to James Irwin from others, not
giving it any right beyond the limits granted.
Much evidence was taken on both sides to show the use of the lot
by the public and by the owner, the application of
Page 50 U. S. 15
which will appear by referring to the arguments of the
respective counsel.
In October, 1846, the counsel for the defendant, Irwin, moved
the court to award an issue to be sent for trial to the Circuit
Court of the District of Columbia, on the common law side thereof,
to ascertain whether the space of ground lying between the east end
of the complainant's warehouse in the bill mentioned and the
Potomac River, or any part thereof, had ever been dedicated by any
fee simple owner thereof, as a highway, to the use of the public,
or whether any, and what, part thereof had been so dedicated, and
if any part thereof had been so dedicated, when the same was so
dedicated.
But the said court overruled the said motion, and refused to
award the said issue as prayed, or any issue relating to the
dedication of the said space, or any part thereof. To which said
refusal the defendant excepted and objected.
The cause then came on to be heard upon the original and amended
bills of the complainants, the answer of the defendant, and the
exhibits and proofs filed by the parties, when the circuit court
passed the following decree:
"Being fully satisfied that Thomas Irwin, the ancestor of said
defendant, did, in his lifetime, dedicate to the public use a
highway passing along the eastern front of the said warehouse
mentioned in said complainants' bill, and running from King Street
to Dock Street, or Fitzgerald's Alley, in the Town of Alexandria,
and that the same was used as a highway for many years before the
filing of the said bill; that there was next to the said warehouse,
and within the said highway, a footway about four feet wide, beyond
and next to which was a highway for the passing and repassing of
carts, carriages, drays, and horses, and the same was commonly used
by all persons having occasion to use the same: and being further
fully satisfied that the said defendant did, before the filing of
the said bill, erect across the said highway a fence, which he has
continued to this day, fully obstructing the passage along the said
highway; that the said fence is immediately adjacent to the east
wall of the said house, between two of the windows in the said east
wall, and close to the frame of one of said windows; that the said
fence was a special and material injury to the use and enjoyment of
the said defendant's said warehouse, and is a continuing injury to
the same, do, this 31 October, 1846, adjudge, order, and decree
that the injunction heretofore issued in this cause be and the same
is hereby made perpetual. And they do further order and direct that
the said defendant do forthwith take down and remove the said
fence, and that
Page 50 U. S. 16
he be, and he is hereby, forever hereafter, so long as the said
footpath and highway shall be continued to be used as such,
enjoined and prohibited from erecting or putting any obstruction in
the said highway within the space of nineteen feet wide, measured
east from the eastern wail of said warehouse of said complainants,
and running from King Street to Dock Street, or Fitzgerald's Alley,
as it is indifferently called and known, which said nineteen feet
is hereby declared to be the eastern limit of said highway, and
said highway does extend no farther east, and that the said
defendant pay the costs of this suit, to be taxed by the
clerk."
From this decree, Irwin appealed to this Court.
Page 50 U. S. 25
MR. JUSTICE WOODBURY delivered the opinion of the Court.
The proceedings on which the decree was entered had been in
substance as follows.
The Dixions, September 6, 1844, filed a bill in chancery,
setting out their purchase, in October, 1843, of a certain
warehouse in Alexandria, "with all the rights and appurtenances to
the same belonging," and that they had since been in quiet
possession of the same; that this warehouse
"fronts, on the east, the River Potomac, and the doors and
windows of said front open on a strand, which has been used
uninterruptedly as a public highway for upwards of thirty
years;"
that said strand or street is the great thoroughfare for that
part of the town between the river and the last range of warehouses
fronting thereon, and "has always been used as a common and public
highway for the free and uninterrupted passage and intercourse of
the public;" and that said warehouse and doors and windows "have
been erected upwards of thirty years, without any effort or claim
heretofore to obstruct the same."
The bill then charged that William H. Irwin, on 5 September,
1844, prepared materials and employed carpenters to close up and
obstruct the doors and windows of the plaintiffs, thus situated,
claiming the right to do the same, and intends forthwith to nail
plank over it, or build a fence "just in front of the said
warehouse, whereby its use and value would be greatly and seriously
injured," and, unless prevented, it "will cut off all direct
intercourse between the said front and the said public strand and
the River Potomac."
They therefore prayed an injunction to prevent it, alleging
Page 50 U. S. 26
it would amount to a nuisance, and constitute an irreparable
injury to their property, and asked further to have it abated, if
already erected. An amended bill was afterwards filed on 21
September, 1844, as if at that time original, and varying from the
first bill chiefly by describing the fence as then erected, and
over eight feet high, and obstructing a window in the warehouse,
and extending in front of it about eight feet; and averring that
Irwin had refused to obey the temporary injunction already issued.
It also alleged, that a dedication of this land had been made to
the public by the respondent and his predecessors, and an easement
thereby accrued to the public over it, and that the fence was both
a private and public nuisance, and caused to the complainants
irreparable damage.
The answer of the respondent, filed in April, 1846, admitted the
erection of a fence near the place, as alleged in the bill, and
constituting an enclosure about twenty-six feet square, but denied
that it obstructed, "in any perceptible degree," the light of any
of the windows of the complainant, or stood on any public highway.
On the contrary, the answer averred that it stood on the "wharf
property and pier," which belonged to him, his brother James, and
sister Ann, in common, from their father's estate, and which had
always been claimed, used, and belonged to their father and them as
private property. After many further allegations in defense, and
putting in various exhibits and much evidence on both sides, as
appears in detail in the statement of this case, the circuit court
declared itself to be fully satisfied that Thomas Irwin, the
ancestor of the said defendant, did in his lifetime dedicate to the
public use a highway passing along the eastern front of said
warehouse &c.,
"and that the same was used for many years before the filing of
the said bill, and that there was next to the said warehouse, and
within the said highway, a footway about four feet wide, beyond and
next to which was a highway for the passing and repassing of carts,
carriages,"
&c., "and the same was commonly used by all persons having
occasion to use the same."
"And being further fully satisfied that the said defendant did,
before the filing of said bill, erect across the said highway a
fence, which he hath continued to this day, fully obstructing the
passage along the said highway,"
and, being built immediately adjoining said warehouse and its
windows, that it was a special and material injury to the use and
enjoyment of the warehouse, the court did adjudge, order, and
decree, "that the injunction heretofore issued in the cause be and
the same is hereby
Page 50 U. S. 27
made perpetual." The court further ordered, that the fence be
removed by Irwin, and that he be enjoined from obstructing in any
manner said highway "within the space of nineteen feet wide
measured east from the eastern wall of said warehouse," &c.
It will be seen that the decree below proceeds chiefly on the
ground, that a legal public highway exists, running nineteen feet
wide east of the warehouse and immediately contiguous to the same,
and that a wrong has been done by the respondent by obstructing
that highway. It is true, that the decree speaks also of the
obstruction being injurious to the warehouse and private rights of
the plaintiffs, and so does the bill. But the gravamen of both is
the existence of a public highway where the fence runs.
In our opinion, whether looking to the private or public rights
and privileges which are alleged to be obstructed, this proceeding
cannot be sustained. The state of some of the circumstances renders
the injunction asked here not a proper form of remedy for the
supposed damage to any private interests, and the principal ground
of complaint for a public as well as private wrong in preventing
travel across the alleged highway is not satisfactorily made out by
showing clearly the existence of such highway.
As to the first ground of objection. This form of remedy was one
much questioned, as permissible either to the public or an
individual, in the case of a public right of this kind invaded. 3
Mylne & Keen 180; 2 Johns.Ch. 380; 16 Ves. 138. And when at
last deemed allowable, it was only where the community at large, or
some individual, felt interested in having the supposed nuisance
immediately prostrated on account of its great, continued, and
irreparable injury, and it was then used as a sort of preventive
remedy to a multiplicity of suits, and in cases where an action at
law would yield too tardy and imperfect redress.
Osborne v. United States
Bank, 9 Wheat. 840,
22 U. S. 841;
14 Conn. 581; 21 Pick. 344; Eden on Injunction, ch. 11; 7 Johns.Ch.
315;
Jerome v. Ross, 17 Conn. 375; 3 Mylne & Keen 177;
1 Stor. Eq.Jur. 25. When, however, delay can safely be tolerated,
the usual remedy in such cases, by or in behalf of the public, is
an indictment rather than an injunction.
37 U. S. 12 Pet.
98; Bac.Abr., Nuisance, D; Co.Lit. 56
a; 19 Pick. 154;
Willes 71;
Wilkes' Case, 2 Bingh.N.R. 295, 281; 1
Bingh.N.R. 222; 2 Stor. Eq.Jur. 923. And no remedy whatever exists
in these cases by an individual, unless he has suffered some
private, direct, and material damage beyond the public at
large,
Page 50 U. S. 28
as well as damage otherwise irreparable. Hawk.P.C., ch. 75;
Rowe v. Granite Bridge, 21 Pick. 344;
Stetson v.
Faxon, 19 Pick. 147, 511; 1 Penn.St. 309; 6 Johns.Ch. 439;
City of Georgetown v. Alex.
Can. Co., 12 Pet. 97,
37 U. S. 98; 2
Ld.Raym. 1163;
O'Brien's Case, 17 Conn. 342; and
Bigelow's Case, 14 Conn. 565; 3 Daniell, Ch.Pr. 1858;
Spencer v. London & Birm. R. Co., 8 Sim. 193, and
Sampson v. Smith, ib., 272;
37 U. S. 12 Pet.
98; 18 Ves. 217; 2 Johns.Ch. 382.
In cases of injury to individual rights by obstructions or
supposed nuisances, an injunction is still less favored, and does
not lie at all permanently, in England and most of the states,
unless the injury is not only greater to the complainant than to
others, and of a character urgent and otherwise irremediable at
law, but the right or title to raise the obstruction is not in
controversy, or is first settled at law. (
See cases
hereafter.) When all these prerequisites exist, an individual,
rather than only a public officer, has been allowed in chancery to
obtain a perpetual injunction, though for a supposed public
nuisance. 2 Stor. Eq.Jur. 924; 6 Johns.Ch. 439. But it is better
for him, whether the nuisance be public or private, when the injury
is not great and pressing, to resort for redress to a private
action at law, and such, though not the only course, is the one
most appropriate and safe.
See same cases and others in
Bac.Abr. Nuisances, B;
Wynstanley v. Lee, 2 Swanston 337.
In this last case, much like the present, an injunction was
refused. So
Attorney-General v. Nichol, 16 Ves. 339, and
Wilson v. Cohen, 1 Rice Ch. 80. One reason for this is the
peculiar damage to him beyond that to others, which must be proved,
when the extraordinary remedy by injunction is sought in his name
either for a private or public nuisance. Another is the great,
pressing, and otherwise irremediable nature of the injury done,
which must also be then proved, and which is not entirely without
doubt in the present case.
But more especially is this form of remedy not expedient to be
adopted, unless indispensable from the character of the damage, as
an individual is not in point of law allowed at first anything but
a temporary injunction to preserve the property uninjured till an
answer can be filed admitting or denying the right of the
plaintiff, and, if doing the latter, till a trial at law can be had
of that right, when desired by the defendant or deemed proper by
the court. And when the right or title to the place in controversy,
or to do the act complained of, is, as here, doubtful, and
explicitly denied in the answer, no permanent or perpetual
injunction will usually be granted till such trial at law is had,
settling the contested rights and interests of the parties.
Page 50 U. S. 29
2 Swanst. 352; 2 Johns.Ch. 546, in
Johnson v. Gere; Storm v.
Mann, 4 Johns.Ch. 21;
Akrill v. Selden, 1 Barbour
316;
Crowder v. Tinkler, 19 Ves. 622;
Weller v.
Smeaton, 1 Cox, 102.
See Parker v. Perry, 1 Woodb.
& Minot 280; 2 Story's Eq.Jur. ยงยง 927, 1479; 1 Ves.Sen. 543;
Rider's Case, 6 Johns.Ch. 46; 3 Daniell's Ch.Pr. 1850 and
1860;
Woodworth v. Rogers, 1 Railroad Cas. 120; 19 Ves.
144, 617; Bac.Abr., Injunction, A;
Anonymous, 1 Bro.C.C.
572; 3 Merivale 688; 1 Bland Ch. 569; 1 Vernon 120-270; Ambler 164;
Drewry on Inj. 182, 238; 17 Ves. 110; 8 Ves. 89; 2 Bro.Ch. 80; 2
Ves. 414; 7 Ves. 305;
Birch v. Holt, 3 Atk. 726; 3
Johns.Ch. 287;
Higgins v. Woodward, 1 Hopkins, 342;
Attorney General v. Hunter, 1 Dev. Eq. 12; 8 Sim. 189; 14
Conn. 578;
Hilton v. Granville, 1 Craig & Phil. 283,
and
Harman v. Jones, id., 299, 302;
Ingraham v.
Dunnell, 5 Met. 126; 6 Pick. 376;
Wynstanley v. Lee,
2 Swanst. 355;
Yard v. Ford, 2 Saund. 172;
Birm. Can.
C. v. Lloyd, 18 Ves. 515 and 211.
The true distinction in this class of cases is that in a
prospect of irremediable injury by what is apparently a nuisance, a
temporary or preliminary injunction may at once issue. 1 Cooper's
Sel.Cas. 333;
Earl of Ripon v. Hobart, 3 Mylne & Keen
169, 174-179; 6 Ves. 689, note; 7 Porter 238;
Hart v. Mayor of
Albany, 3 Paige 213;
Shubrick v. Guerard, 2
Dessaussure, 619; 1 Craig. & Phil. 283; 4 Simons 565, in
Sutter's Case. But not a permanent or perpetual one till
the title, if disputed, is settled at law. 1 Paige 97;
State v.
Mayor of Mobile, 5 Porter 280, 316.
See authorities
last cited. In some of the states it is understood that the
practice in this last respect is otherwise. In the celebrated case
of
United States Bank v.
Osborn, 9 Wheat. 738, it will be seen that the
answers (
22 U. S.
742-743) did not deny the title of the plaintiffs, and
the Chief Justice says (
22 U. S. 858)
-- "The responsibility of the officers of the state for the money
taken out of the bank was admitted." But a case entirely in point
on this difficult question in this tribunal is
State
of Georgia v. Brailsford, 2 Dall. 406-408. There, a
temporary injunction issued, not to pay over money "till the right
to it is fairly decided." And on an issue to a special jury, the
trial was had before a final decision was made on a permanent
injunction. 3 Dall.
3 U. S. 1. This
condition of things as to the form of the remedy adopted here,
where the damage was so small and the right was in controversy, is
very unfavorable to the correctness of the final decree in the
court below, awarding a perpetual injunction to the plaintiffs on
their private account, and more especially so far as it rested on
any private rights to any part of the open space.
Page 50 U. S. 30
But beside these objections to the course of proceeding followed
in this case, the chief foundation for relief of any kind which is
set up here seems to fail. It is the allegation and decree that a
public highway exists in front of the warehouse of the plaintiffs.
This seems to us unsupported by the evidence and the law.
There is no claim that such a highway was ever legally laid out
by the city or county of Alexandria. But the plaintiffs in the
court below rely for its existence chiefly, if not entirely, on a
user of it by the public as a highway for more than thirty years.
The counsel for the plaintiffs have placed it in argument, as is
one ground in the amended bill, on the principle that it showed a
dedication of the
locus in quo to the public for a
highway, as well as furnishing presumptive evidence, not rebutted
here, of a title in the public of a right of way there by long
user. First, as to the dedication. It is true that this may at
times be proved by a use of land, allowed unconditionally and fully
to the public for a period of thirty years, or even less.
Cincinnati v.
White, 6 Pet. 431; 22 Pick. 78-80. In
Jarvis v.
Dean, 3 Bingham 447, the public use had been only four or five
years, but with the owner's assent.
See also 31 U. S. 6 Pet.
513. "Such use, however," says Justice Thompson in 6 Pet.
31 U. S. 439,
"ought to be for such a length of time that the public
accommodation and private rights might be materially affected by an
interruption of the enjoyment," and if the time of the use by the
public be long, as, for instance, over twenty years, and
unexplained, the presumption is strong for a dedication.
McConnell v. Trustees of
Lexington, 12 Wheat. 582; 3 Kent's Com. 445;
31 U. S. 6 Pet.
513;
35 U. S. 10
Pet. 718.
There is, then, no difficulty here in deciding that the length
of time of the user was enough, it having been twenty or thirty
years.
But the dedication must also be under such circumstances as to
indicate an abandonment of the use exclusively to the community by
the owner of the soil. 4 Camp.N.P. 16; 1 Camp.N.P. 262; 11 East
370; 3 D. & E. 265;
Jarvis v. Dean, 3 Bingh. 447; 22
Pick. 75. Hence there must not have been, as here, repeated
declarations made by the owner inconsistent with any dedication. 7
Leigh 546, 665;
Livett v. Wilson, 3 Bingh. 116.
Nor must the acts and words be equivocal or ambiguous on that
subject.
In short, the idea of a dedication to the public of a use of
land for a public road must rest on the clear assent of the owner,
in some way, to such dedication.
Nichols v. Aylor, 7
Page 50 U. S. 31
Leigh 546;
Johnson's Case, 8 Adolphus & Ellis 99; 1
Hill 189, 191; 19 Wendell 128; 3 Bingh. 447; 1 Camp.N.P. 262;
31 U. S. 6 Pet.
431; 3 Kent's Com. 445;
Sargent v. Ballard, 9 Pick. 256.
This assent may be proved by a deed or unsealed writing expressing
such assent, or, as no fee in the land, but only an easement
generally is given, it may be by parol or by acts inconsistent and
irreconcilable with any construction except such consent.
31 U. S. 6 Pet.
437;
35 U. S. 10
Pet. 712; 3 Kent's Com. 428, 450; 7 Johns. 106; 2 Pet. 508
[argument of counsel -- omitted]; 12 Wheat. 582;
13 U. S. 9
Cranch 331; 4 Paige 510; 12 Wendell 172; 19 Pick. 406; 4 Mason
1.
Thus, it has been presumed, if one makes a plan of his land in a
city with certain streets laid down between certain lots, and sells
the lots accordingly, that he thus means to dedicate those streets
to the public.
See United States v.
Chicago, 7 How. 196, and cases cited there from
Wendell;
White v. Cower, 4 Paige 510;
Barclay v. Howell's
Lessee, 6 Pet. 506;
New
Orleans v. United States, 10 Pet. 718. And more
particularly is it so if the community are allowed to begin to
occupy the streets accordingly.
Cincinnati
v. White, 6 Pet. 431;
35 U. S. 10
Pet. 718. But a mere survey of such streets, without selling the
contiguous lots or letting the streets be occupied, is not enough.
48 U. S. 7 How.
196.
It is not pretended that in any way has such consent been given
here, except by the acts before referred to, and done under the
explanatory circumstances accompanying them. Thus, though there is
much evidence, that, from the warehouse eastward to the river and
wharf, the land has been open or unenclosed for twenty or thirty
years, and that people and carriages have usually traveled over it
in going to and from the warehouse and wharf, yet during that time,
till the sale of the warehouse to the plaintiffs, that and the open
space and wharf have all been owned by one person, and he has used
them in any manner deemed by him most proper.
On that sale the titles to each became vested in different
persons, and this controversy arose about the use of the open space
from the warehouse to the wharf, an undivided share in which space
and wharf remained in the respondent, and none of it
eo
nomine was conveyed to the plaintiffs. If any private right or
privilege to use any part of it for any purpose passed to the
plaintiffs, it must have been under the word "appurtenances," in
their deed from Irwin of the warehouse and its appurtenances.
But as the construction of the deed in that respect, and of the
facts, as showing any privilege used here by the owners of
Page 50 U. S. 32
the warehouse as belonging to the warehouse, rather than to
their interests in the open space and wharf as separate property,
cannot be now properly under consideration, as before explained, in
a private application for perpetual injunction against an alleged
nuisance, when the damage is not great nor clearly irreparable, and
the right or title to erect it is still in controversy, we do not
examine and decide on the merits, as to any private interests
supposed to be obtained by that deed. And the question recurs on
the other and chief ground for the application and decree -- the
existence of a public highway where the fence was erected.
The idea of a clear intent to dedicate the
locus in quo
for that purpose, which we have seen is necessary to sustain it by
dedication, is further repelled, as before in part suggested, by
the very circumstances, that this space while open and thus used
was designed for the owner's purposes, rather than for the purposes
of others; that it was while the owner of the open space and wharf
was the owner of the warehouse also, and had a right to use both
for himself; and that, the moment the new owner of the warehouse
ceased to have a title to the soil itself in the open space and
wharf, the right to use them freely, either by him or the public,
was questioned and resisted. Besides this, the space, being open
for many years, was manifestly convenient, if not necessary, for
the accommodation and interests of the owners of all this property,
the wharf without this open space being hardly susceptible of any
profitable use, and the warehouse not so accessible.
While, then, anybody might be allowed to travel over this space
from the warehouse east to the wharf and river when convenient and
not injuring the owner, it would not be because it had been
intended to give to the public a right of way over these premises,
but because he himself intended to travel over it, and while so
doing, and so leaving it open, would not be captious in preventing
others from traveling there.
This was not meant to give to others any exclusive rights or
privileges there, but merely a favor in subordination to him and
his rights, as will be clear from various other circumstances
during the twenty or thirty years.
As proof of this, he and his father, before the sale, were
accustomed to use this open space for other private purposes, such
as piling wood and lumber, anchors, tobacco &c., as well as for
a passage to and from their wharf; they uniformly continued to pay
taxes on it, as if entirely private property and not given to any
public use, and the city continued to assess taxes on it to them as
owners, rather than refraining to do it, as
Page 50 U. S. 33
in case of highways generally; they made repairs on it when
needed, as if open for their own use and advantage, instead of its
being repaired by the city, as was done with public highways, and
they required persons to remove themselves, horses, and carriages
from it, when causing damage or giving offense, and stating at the
time virtually that no public privileges existed there.
As soon, likewise, as William Irwin had no further occasion to
keep open the western portion of this open space for his own use
and benefit, as owner of the warehouse, he fenced it up.
Circumstances like these seem entirely inconsistent with the idea
that any intended dedication had been made of these premises, or
the use of them, to the public. The effect of these circumstances
is to undermine and destroy also the other ground set up by the
bill, as well as the decree below, that a public highway had been
established there, not by dedication, but by over thirty years, use
of the land for that purpose by the community.
In order to have a use or occupation accomplish this, it must
have been adverse to the owner 3 Kent's Com. 444, whereas this was
by his consent. It must also have been an exclusive use by the
public, whereas this was in common with him for travel, and
entirely in him for several purposes of a private character. It
must have been, also, acquiesced in by the owner, and not contested
and denied, as here.
Nichols v. Aylor, 7 Leigh 547. It
should likewise, in that event, have been treated by the public
authorities as a highway in connection with the user and
occupation, so as to give notice it was meant to be so claimed,
whereas this was not repaired by the city, nor left untaxed to the
owner, as in other cases of public roads.
From the very nature of wharf property, likewise, the access
must be kept open for convenience of the owner and his customers,
but no one ever supposed that the property thereby became public
instead of private, and especially under such numerous and decisive
circumstances as existed here rebutting such an inference.
No length of time, during which property is so used, can deprive
an owner of his title, nor give to the community a right to enjoin
or abate the owner's fences over it as a nuisance, on the ground
that they have acquired a legal easement in it. Finally, it is to
be recollected that an injunction is what is termed a transcendent
or extraordinary power, and is therefore to be used sparingly, and
only in a clear and plain case.
Rosser v. Randolph, 7
Porter 238, 245; 3 Johns.Ch. 48
semble; 3
Page 50 U. S. 34
Mylne & Keen 180, 181;
Bigelow v. Hartf. Bridge
Co., 14 Conn. 580.
The decree below cannot, under these views, be sustained, on any
of the grounds which have been urged in its support. It must
therefore be
Reversed and the case remanded with instructions that the
bill should be dismissed.
Order
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
Columbia, holden in and for the County of Alexandria, and was
argued by counsel. On consideration whereof, it is now here
ordered, adjudged, and decreed by this Court, that the decree of
the said circuit court in this cause be, and the same is hereby,
reversed, with costs, and that this cause be, and the same is
hereby, remanded, with instructions to dismiss the bill of
complaint, in conformity to the opinion of this Court.
